A MANUAL OF JURY TRIAL PROCEDURES

A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter One: Pre-Trial Considerations

1.6     Presence Of Defendant (Criminal)
          A. Defendant's Presence Generally
          B. Pretrial Conference
          C. Voir Dire—Sidebar Conferences with Prospective Juror
          D. Sidebar Conferences During Trial
          E. In Camera Contact with Juror(s)
          F. Jury Instruction Conferences
          G. Readbacks During Deliberations

A MANUAL OF JURY TRIAL PROCEDURES - 2004

NCJIC Materials Related To This Issue:

NCJIC 300.15 [Presence Of Defendant At Trial]

A Presence Of Defendant (Criminal): Defendant's Presence Generally

A defendant has the right to be present at every stage of the trial. The right is both constitutional and statutory. The constitutional right is based on the Fifth Amendment due process clause and the Sixth Amendment right to confrontation. Under the Constitution, the defendant's presence "is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." United States v. Gagnon, 470 U.S. 522, 526 (1985) (quoting Snyder v. Massachusetts, 291 U.S. 97, 108 (1934)). Thus, the Constitution does not guarantee that a criminal defendant be present at all stages of the trial but rather only at "critical stage[s]." La Crosse v. Kernan, 244 F.3d 702, 707-08 (9th Cir. 2001).

In Faretta v. California, 422 U.S. 806, 819 n.15 (1975), the Supreme Court stated that a defendant has the "right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." See also Fisher v. Roe, 263 F.3d 906, 914-15 (9th Cir. 2001) (citing Snyder, 291 U.S. at 105-06) (defendant has a right to be present if his presence "has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge").

Rule 43(a), Fed. R. Crim. P., provides in part that a defendant must be present at every trial stage, including the jury impanelment and the return of the verdict and sentencing, unless otherwise provided by the rules.

Rule 43(b)(3), Fed. R. Crim. P., provides in part that a defendant need not be present where the "proceeding involves only a conference or hearing on a question of law."

Rule 43(c), Fed. R. Crim. P. governs circumstances under which a defendant has waived the right to be present at trial or sentencing:

Waiving Continued Presence.

(1) In General. A defendant who was initially present at trial, or who has pleaded guilty or nolo contendere, waives the right to be present under the following circumstances:

(A) when the defendant is voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain during trial;

(B) in a noncapital case, when the defendant is voluntarily absent during sentencing; or

(C) when the court warns the defendant that it will remove the defendant from the courtroom for disruptive behavior, but the defendant persists in conduct that justifies removal from the courtroom.

(2) Waiver's Effect. If the defendant waives the right to be present, the trial may proceed to completion, including the verdict's return and sentencing, during the defendant's absence.

Case law does not offer precise answers as to all circumstances under which a defendant is entitled to be present. The safer and better practice is to have the defendant present at all times unless the defendant waives the right to be present. See, e.g., United States v. Gagnon, 470 U.S. at 528 (although district judge's in camera contact with juror constituted critical stage, waiver inferred from defendant's failure to request to be present after having been advised that judge intervened to talk to juror); Egger v. United States, 509 F.2d 745, 747-48 (9th Cir.) (under circumstances presented, any error resulting from defendant's absence at sidebar conferences was harmless), cert. denied, 423 U.S. 842 (1975); Stein v. United States, 313 F.2d 518, 522 (9th Cir. 1962) (defendant's absence from conference between court and counsel regarding admissibility of recordings not reversible error on facts presented), cert. denied, 373 U.S. 918 (1963).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

NCJIC Materials Related To This Issue:

NCJIC 300.15 [Presence Of Defendant At Trial]

B. Presence Of Defendant (Criminal): Pretrial Conference

A defendant is not required to be present at a pretrial conference concerning legal issues. United States v. Veatch, 674 F.2d 1217, 1225-26 (9th Cir. 1981), cert denied, 456 U.S. 946 (1982); Rule 43(b)(3), Fed. R. Crim. P.

A MANUAL OF JURY TRIAL PROCEDURES - 2004

NCJIC Materials Related To This Issues:

NCJIC 300.15.2 [Presence At Sidebar Discussion: Failure To Object Is Not Fatal]

C. Presence Of Defendant (Criminal): Voir Dire–Sidebar Conferences With Prospective Juror

At the outset of the voir dire process, the court may wish to notify prospective jurors that should a question of the court call for a response that might be a source of embarrassment, the prospective juror may approach the sidebar and answer the question. This procedure is especially helpful when questioning about arrests, convictions, involvement with drugs and/or other life experiences involving the jurors and/or their families. The trial judge has several options available to guarantee that the defendant is appropriately apprised of any discussions with potential jurors which may occur outside the presence of the jury panel in open court.

1. Sidebar Conferences During Voir Dire. One option available to the trial judge is to speak with the prospective juror at a sidebar conference attended by respective counsel. Because of the close proximity of the defendant, this procedure has been upheld by other circuits. See, e.g., United States v. Dioguardi, 428 F.2d 1033 (2d Cir.) (sidebar conference at which prospective juror was questioned and from which defendants were excluded permissible in light of close proximity of defendants and opportunity of counsel to confer with defendants), cert. denied, 400 U.S. 825 (1970). Cf. United States v. Alessandrello, 637 F.2d 131 (3d Cir. 1980) (questioning of prospective jurors concerning pretrial publicity in judge's anteroom from which defendants were excluded permissible in light of close proximity of defendants and opportunity of counsel to confer), cert. denied, 451 U.S. 949 (1981). Some courts have found that any error in conducting a portion of voir dire at sidebar is harmless under certain circumstances. See, e.g., United States v. Feliciano, 223 F.3d 102, 112 (2d Cir. 2000) (error in conducting limited voir dire at sidebar was harmless where the defendants were present in the courtroom and could consult with counsel about what was revealed at sidebar), cert. denied, 532 U.S. 943 (2001); United States v. Cuchet, 197 F.3d 1318, 1321 (11th Cir. 1999) (error for conducting voir dire at sidebar was harmless where the defendant was present during general voir dire, sidebar voir dire concerned only limited topics, and defense counsel could question each prospective juror and confer with the defendant afterwards). The Ninth Circuit has stated that "[a]lthough a defendant charged with a felony has a fundamental right to be present during voir dire, this right may be waived." See United States v. Sherwood, 98 F.3d 402, 407 (9th Cir. 1996). Waiver may be effected by the defendant's "failing to indicate to the district court that he wished to be present at sidebar." Id. See also, United States v. McClendon, 782 F.2d 785, 788 (9th Cir. 1986) (defendant waived his right to be present where he knew of in-chambers voir dire but failed to object).

2. Sidebar Conference with Interpreter Present. In cases in which the defendant requires the services of an interpreter and headphones are being used for translation, the court may request that the certified court interpreter attend individual voir dire being conducted at a sidebar conference and transmit the conference to a defendant seated at counsel table.

3. Sidebar Conference with Defendant. Generally, it is not desirable to invite the defendant to personally attend bench conferences at which individual prospective jurors are questioned because: (1) prospective jurors may experience discomfort being in such close proximity to the defendant, and (2) when a defendant is in custody, security considerations may require that a guard accompany the defendant to the sidebar conference, which would alert the jury to the fact that the defendant is in custody.

4. Other Options. Problems associated with sidebar voir dire proceedings may be avoided if the court conducts examination in open court with the panel excluded or obtains a waiver from the defendant of the right to be present at sidebar conferences.

A MANUAL OF JURY TRIAL PROCEDURES - 2004

NCJIC Materials Related To This Issues:

NCJIC 300.15.2 [Presence At Sidebar Discussion: Failure To Object Is Not Fatal]

D. Presence Of Defendant (Criminal): Sidebar Conferences During Trial

Whether sidebar conferences will be allowed is within the sound discretion of the court. A sidebar conference may also be used to resolve relatively short issues which should not be discussed in front of the jury. More complex issues requiring lengthy discussion should be taken up during recesses, out of the presence of the jury.

Practical Suggestion

Waiver of Defendant's Presence at Sidebar Conference

At the outset of trial, the trial judge should ask defense counsel if the defendant waives his or her right to be present at any sidebar conferences that may occur during trial.

A MANUAL OF JURY TRIAL PROCEDURES - 2004

NCJIC Materials Related To This Issues:

NCJIC 300.15 [Presence Of Defendant At Trial]

E. Presence Of Defendant (Criminal): In Camera Hearing With Juror

In United States v. Gagnon, 470 U.S. 522 (1985), the district judge informed the parties during trial that she intended to speak with a juror, in camera, in chambers after the juror expressed concern because the defendant was observed sketching the jurors. The Supreme Court held that "failure by a criminal defendant to invoke his right to be present under Federal Rule of Criminal Procedure 43 at a conference which he knows is taking place between the judge and a juror in chambers constitutes a valid waiver of that right." 470 U.S. at 529.

In United States v. Rosales-Rodriguez, 289 F.3d 1106, 1109-10 (9th Cir.), cert. denied, 537 U.S. 1061 (2002), the Ninth Circuit found that the District Court's giving of a supplementary instruction to the jury, without knowledge of the parties, constituted a "critical stage" of a trial during which the presence of a defendant or his counsel was required under the Constitution and Fed. R. Crim. P. 43. However, the court found that the error was harmless beyond a reasonable doubt because "there is no reasonable possibility that prejudice resulted from the [defendant's] absence."

A MANUAL OF JURY TRIAL PROCEDURES - 2004

NCJIC Materials Related To This Issues:

NCJIC 2.6 [Presence Of Defendant Re: Instructions]

F. Presence Of Defendant (Criminal): Jury Instruction Conferences

The court may conduct the jury instruction conference in the defendant's absence. United States v. Sherman, 821 F.2d 1337, 1339 (9th Cir. 1987). See also United States v. Rivera, 22 F.3d 430, 438-39 (2d Cir. 1994) (defendant was not entitled to attend charging conference because of its purely legal nature) (citing Fed. R. Crim. P. 43). The court may wish to determine if the defendant wishes to be present during jury instructions conference.

A MANUAL OF JURY TRIAL PROCEDURES - 2004

NCJIC Materials Related To This Issues:

NCJIC 284.1.5 [Readback: Should Be Conducted In Open Court And In The Presence Of Counsel And Defendant]

NCJIC 300.15 [Presence Of Defendant At Trial]

G. Presence Of Defendant (Criminal): Read-backs During Deliberations

See § 5.2.D

The defendant has the right to be present during the replaying or reading back of testimony. Turner v. Marshall, 121 F.3d 1248 (9th Cir. 1997) (harmless error on facts presented), cert. denied, 522 U.S. 1153 (1998).